R v KD

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Loukas-Karlsson J
• Judgment Date: 15 March 2019
• Docket Number: File Number: SCC 143 of 2018
• Date: 15 March 2019

[2019] ACTSC 62

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Loukas-Karlsson J

File Number: SCC 143 of 2018

The Queen

(Crown)

and

KD

(Offender)

Representation:

Counsel

Mr J Walker (Crown)

Ms B Morrisroe (Offender)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Cranfield v The Queen [2018] ACTCA 3

Gillard v The Queen [2016] ACTCA 50

Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353

Hili v the Queen [2010] HCA 45; 242 CLR 520

Livas v The Queen [2015] ACTCA 54

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Pasinis v The Queen [2014] VSCA 97

R v Agresti [2016] ACTSC 9

R v Al Abbasi [2017] ACTSC 239

R v Alabbasi [2017] ACTSC 231

R v Aroub [2017] ACTSC 187

R v Bourke [2018] ACTSC 5

( R v Glen unreported, NSW Court of Criminal Appeal, 19 December 1994, Simpson J)

R v Goold (No 2) [2016] ACTSC 227

R v Grech [1999] NSWCCA 268

R v Haddara [2018] ACTSC 70

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Holliday [2017] HCA 35; 260 CLR 650

R v Hoyle (No 2) [2017] ACTSC 175

R v LQT [2018] ACTSC 246

R v Martin [2007] VSCA 291; 20 VR 14

R v Naqvi [2016] ACTSC 345

R v NL [2018] ACTSC 22

R v NO [2018] ACTSC 37

R v Palmer [2017] ACTSC 357

R v Pham [2015] HCA 39; 256 CLR 550

R v PM (No 2) [2015] ACTSC 358

R v QG [2018] ACTSC 343

R v Stanley [2015] ACTSC 322

R v Stevens (No 3) [2017] ACTSC 297

R v SV [2016] ACTSC 211

R v Tamawiwy (No 4) [2015] ACTSC 371

R v Toumo'ua [2017] ACTCA 9; 265 A Crim R 499

R v UG [2018] ACTCA 64

R v Wyper (No 2) [2017] ACTSC 103

Singh v The Queen [2017] ACTCA 17

Singh v The Queen [2015] ACTCA 65

Shaw v R [2008] NSWCCA 58

Legislation Cited:

Crimes Act 1900 (ACT) s 54

Crimes (Sentencing) Act 2005 (ACT) ss 6,7,10, 33

Criminal Code 2002 (ACT) s 44

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — attempted sexual intercourse without consent — plea of guilty — family violence context

Loukas-Karlsson J

Introduction

1 On 21 November 2018, KD (the offender) pleaded guilty to an offence of attempted sexual intercourse without consent contrary to section 54(1) of the Crimes Act 1900 (ACT), by virtue of s 44 of the Criminal Code 2002 (ACT) (the Criminal Code).

2 The maximum penalty for the offence is 12 years of imprisonment.

Agreed Facts

3 The agreed facts are set out in the Statement of Facts, which forms part of the Crown's Tender Bundle, which was Exhibit 1 on sentence. The facts, in short summary, are as follows.

4 At about 9pm on 5 March 2018, the offender and his partner (the victim) were at their home. The victim was lying on her back on the lounge in the living room when the offender approached her, pinned her down and repeatedly placed a pillow over her face. The offender pulled down the victim's pants and underwear and attempted to have sexual intercourse with her without her consent.

Victim Impact Statement

5 In evidence before me was a Victim Impact Statement from the victim of the offence. The Victim Impact Statement was read out by the victim at the sentence hearing.

6 Courts know of the serious effects of offences such as this. Nevertheless, it is valuable and important to hear the words of the victim in this case.

7 Here, the victim's statement included the following:

When I made the report I was angry and not in a good space, I wanted help for [KD] and our family. We have had our ups and downs and this has been a huge wake up call not only for [KD] but myself and how we communicate needs to change. We have sourced information to start couple's counselling and have both done individual counselling.

We realise the issues within our relationship. I have seen change in [KD] and we both know our son comes first – behaviour needs to be managed in a healthier way for us both and I believe mental health issues played a part, we both are seeking help and support with this. We both cannot believe how things got so bad. 2018 and onwards has been a very hard year for me and [KD] but I am positive we can go on treating each other with respect. I have had stresses this year dealing with many organisation such as domestic violence services, ACT policing, DPP and Housing. As our home was damaged I lived with my mum for over 6 months, it took housing over 10 months to repair the damage, I felt intimidated by many staff members such as harassing phone calls from ACT policing asking me about personal meetings with Care and Protection a number of times, my son always comes first and I was painted as a terrible mother who did not deserve my son. This got me thinking why did I ask for help from these organisations?

…

There was a time when I thought I just couldn't deal with anymore of these government processes, I could no longer answer my phone. I could type many pages about how I was impacted but basically everything has been very hard for me and [KD] and I wish happiness for both of us whether together or apart. There are many traumatic memories from all of this and I am happy to say we have both come out stronger. Me and [KD's] relationship could not go on how it was and now more than ever that is very clear. Believe it or not but the process and unprofessional communication of some agencies has been more traumatising then the truth of what happened back in March.

8 The Court acknowledges the Victim Impact Statement of the victim.

Offences of Attempt

9 Section 44 of the Criminal Code creates a “discrete offence”: R v Holliday [2017] HCA 35; 260 CLR 650 at [31]. The maximum penalty for the offence attempted applies: s 44(9). The maximum penalty in this case is 12 years of imprisonment.

10 An attempt requires “conduct that is more than merely preparatory to the commission of the offence attempted” and intention to commit the offence attempted: ss 44(2) and (5) of the Criminal Code.

Objective Seriousness

11 Counsel for the offender submitted that the offence was towards the lower end of objective seriousness, as the offence was an attempt which ceased. Counsel for the offender noted the circumstances surrounding the offending, namely a relationship under a significant amount of strain, which culminated in arguments between the offender and victim over a weekend spent by her in Sydney.

12 The prosecution submitted that a sexual assault offence is not to be regarded as at the lower end of the scale merely because intercourse did not actually occur, and that an attempted sexual intercourse without consent may be a serious offence, in particular where there are aggravating features: see R v Grech [1999] NSWCCA 268.

13 The prosecution further submitted that this was an objectively very serious example of an attempt offence for a number of reasons, including that the young child of the complainant was present. It is not clear in the agreed statement of facts that the child was present other than residing there. Therefore, I cannot and do not take the presence of the child into account. In Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 Adams J (with whom Handley AJA and Howie AJ agreed) stated the following at [26]–[27]:

The Crown case, therefore, provided no proper basis for inferring that the offences for which the offender was being sentenced, whether substantively or on the Form 1, had occurred in circumstances in which the youth was exposed to their conduct and criminality…The evidence is ambiguous: it is one thing to know that drugs were being supplied and quite another to be “exposed” to it. Such a circumstance of aggravation must be proved beyond a reasonable doubt. This evidence did no more than raise the possibility.

14 The prosecution submitted that the offender's motive was about control and entitlement, a motive which underpins family violence offending more generally. The prosecution submitted that as a result of this motive, the offending was a serious example of the offence. Regardless of motive, the prosecution ultimately submitted that the offence was of mid-range seriousness.

15 I find the offence to be approaching mid-range seriousness.

16 Nevertheless, it must be stated that references to low, mid-range and high range are unlikely to be helpful in this jurisdiction. As has previously been expressed in this jurisdiction, it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of the case: R v Toumo'ua [2017] ACTCA 9; 265 A Crim R 499 ( Toumo'ua).

17 The objective seriousness is informed by the agreed facts, in this case including the pinning down of the victim and the repeated placing of the pillow over the victim's face.

Subjective Circumstances

18 In evidence before me is the pre-sentence report (PSR) prepared for the offender.

19 The offender is 24 years of age, and is one of five children to his parents union. The offender reported a chaotic childhood with exposure to domestic violence and his father's mental health issues in his family home. The offender's parents separated when the offender was eight years of age, and the offender lived with his mother and siblings. The offender's father passed away when the offender was 12 years of age. The offender reported being subjected to sexual abuse by a family member in the family home. He has disclosed this information to family members since entering custody.

20 The offender's mother has a number of ongoing health issues, and the offender had acted as her carer for several years. The offender's mother re-partnered, the offender enjoyed a positive relationship with his step father until he passed away in 2012.

21 The offender entered into a relationship with his partner (the victim) in 2013. The couple have one child together. The offender acknowledged to the author of the PSR that the relationship had been difficult for him and his partner at times, with several arguments and disagreements prior...